Protection against victimisation
The next case is a reminder to employers that, no matter how unfair it may appear to them, they cannot dismiss employees for making false allegations of discrimination except where the allegations are made maliciously. This is because the Equality Act protects an employee from being subjected to a detriment because s/he has carried out what is referred to as a 'protected act'.
A protected act is any of the following :
- bringing proceedings under the Act
- giving evidence or information in proceedings brought under the Act;
- doing anything which is related to the provisions of the Act;
- making an allegation that another person has done something in breach of the Act.
However, none of these actions is protected if the evidence or information is given, or the allegation is made in bad faith.
The facts of the case were that the Claimant, a black man, lodged 10 grievances alleging race discrimination and issued 7 tribunal claims in a period of 4 years, almost all of which were found to be empty allegations without any evidential basis or grounds for his suspicion.
The employer eventually dismissed the Claimant, because of a breakdown in trust and confidence. The ET ruled that dismissal was not victimisation, because the employer would similarly have dismissed any employee (irrespective of race) who had brought a similar number of unfounded grievances and claims.
On appeal, the EAT ruled that this was wrong. The grievances and tribunal claims were protected acts under the Equality Act and the Claimant was dismissed because he had made them. There was no suggestion of bad faith (which would have prevented the grievances amounting to protected acts). Since he was dismissed for making protected acts, his victimisation claim should have succeeded.
Although the decision will be unpopular with employers, it is an important reminder that, in the absence of bad faith, an employer cannot dismiss an employee who makes serial but misguided complaints of discrimination.
If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mailing him at email@example.com
Warning – this bulletin is for information only and does not claim to be comprehensive or to provide legal or other advice. You should take legal advice before taking or refraining to take any action. No liability is accepted for loss that may arise from placing reliance on this bulletin.